NJ: Cell phone password not 5A privileged on this record

Defendant’s forced disclosure of his iPhone password didn’t violate the Fifth Amendment because his knowledge of that information was a foregone conclusion on this record. State v. Andrews, 2018 N.J. Super. LEXIS 159 (Nov. 15, 2018):

Here, as in Doe, the act of disclosing the passcodes to defendant’s phones does not convey any implicit factual assertions about the “existence,” or “authenticity” of the data on the device. See ibid. Moreover, in its order, the trial court required defendant to disclose the passcodes in camera before they are communicated to the State. The order thus ensures that any incriminating information would not be disclosed. The order also ensures that by providing the passcodes, defendant will not be compelled “to restate, repeat, or affirm the truth of the contents of the” devices. See Fisher, 425 U.S. at 409.

However, by producing the passcode, defendant is making an implicit statement of fact that the iPhone passcodes are within his “possession or control.” See Doe, 487 U.S. at 209 (citing Doe, 465 U.S. at 613 & n.11; Fisher, 425 U.S. at 409-10). Defendant is acknowledging he has accessed the phone before, set up password capabilities, and exercised some measure of control over the phone and its contents.

Nevertheless, these testimonial aspects of the passcodes are a “foregone conclusion” because the State has established and defendant has not disputed that he exercised possession, custody, or control over these devices. See Fisher, 425 U.S. at 411. Therefore, the fact that defendant knows the passcodes to these devices “adds little or nothing to the sum total of the Government’s information.” See ibid.

Furthermore, the State has described with “reasonable particularity” the specific evidence it seeks to compel, which is the passcodes to the phones. Defendant argues the State is unaware of all of the possible contents of defendant’s devices. This is immaterial because the order requires defendant to disclose the passcodes, not the contents of the phones unlocked by those passcodes. See Fisher, 425 U.S. at 409.

Our conclusion that the Fifth Amendment privilege does not bar the court from requiring defendant to disclose the passcodes is supported by United States v. Apple MacPro Computer, 851 F.3d 238 (3d Cir. 2017). In that case, as part of an investigation of the defendant’s access to child pornography over the internet, authorities executed a search warrant and seized an Apple iPhone 5s and an Apple Mac Pro computer with two attached external hard drives, which were protected with encryption software. Id. at 242. The police later seized an Apple iPhone 6 Plus, which also was password-protected. Ibid.

The defendant voluntarily provided the authorities the password for the iPhone 5s, but refused to provide passwords that would allow access to the computer or the external hard drives. Ibid. Forensic analysis of the computer revealed that it had been used to visit sites known for child exploitation, and that thousands of files associated with child pornography had been downloaded. Ibid. The downloaded files were not on the computer, but stored on the external hard drives, which were encrypted. Ibid.

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